COURT FILE NO.: 44792-10
DATE: 2012/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Elena-Rodica Damaschin-Zamfirescu
Applicant
– and –
Daniel-Julian Damaschin-Zamfirescu
Respondent
Gerry Schaffer, for the Applicant
David Bogdon, for the Respondent
HEARD: November 14, 2012
The Honourable Madam Justice D. Chappel
JUDGMENT
I. INTRODUCTION
[1] These are my Reasons for Judgement in relation to a Motion which the Applicant Elena-Rodica Damaschin-Zamfirescu (“the Applicant”) originally brought on September 27, 2012. The Applicant is requesting that the existing temporary spousal support order made by Gordon, J. dated December 15, 2010 be varied on a temporary basis to require the Respondent to pay her spousal support in the amount of $850.00 per month. The Respondent Daniel-Julian Damaschin-Zamfirescu (“the Respondent”) is requesting that the spousal support terms of the December 15, 2010 remain in effect.
[2] For the reasons that follow, I have concluded that the Applicant has met the test for seeking a temporary variation of the December 15, 2010 order, and that the appropriate amount of ongoing temporary spousal support is $850.00 per month.
II. BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS
[3] The Applicant and the Respondent were married on June 28, 1986 in Romania. They immigrated to Canada on September 27, 1999. There is one child of their relationship, namely Mihai-Adrian Damaschin-Zamfirescu, born January 16, 1995 (“Mihai”), who is now seventeen years of age. The parties separated on October 8, 2010. Their relationship was therefore twenty four years in duration.
[4] The Applicant alleges that the Respondent was abusive towards both her and Mihai during the course of the parties’ relationship. She states that the abuse towards Mihai included both physical and sexual abuse on a number of occasions. The Respondent denies these allegations. It appears from the Applicant’s materials that Family and Children’s Services of Windsor was involved with the family in approximately 2001 as a result of alleged abuse of Mihai, but the materials before me do not provide any details regarding the specific reasons for or outcome of that intervention.
[5] Following the separation, the Applicant moved into a shelter and the Respondent continued to reside in the jointly owned matrimonial home. The Applicant subsequently moved into a subsidized housing unit. Mihai has remained in the Applicant’s care since the separation. At the time of the separation, Mihai was attending grade 10 at Cameron Heights High School. Mihai is now in grade 12 at the same school.
[6] Until the separation, the Applicant was working as a clerk for the Loblaws Superstore in Kitchener, teaching customers how to cook. She resigned from this position around the time of the separation. The Applicant has not provided an explanation for this resignation in the affidavit materials which she has filed. Based on the material before me, it appears that the Applicant’s income since 2007 has been as follows:
2007: $14,051.00
2008: $8,458.00
2009: $3,075.00
2010: $4,312.00
2011: $10,200.00 (consisting of spousal support payments from the Respondent)
[7] The Respondent is a Senior Financial Analyst for Loblaws Inc. Based on the evidence before me, it appears that his income since 2009 has been as follows:
2009: $58,740.00
2010: $62,477.00
2011: $62,913.00
[8] In his Financial Statement sworn October 12, 2010, the Respondent claims that his annual income for 2012 is anticipated to be $58,836.00. However, his Statement of Earnings for the period ending September 22, 2012 indicates that his regular year to date income as of that date was $44,878.00, and that he had also received a bonus in the amount of $4,900.47. Based on that Statement of Earnings, it appears that the Respondent’s projected annual 2012 income will be more in the area of $64,000.00.
[9] The Applicant commenced the Application herein on November 24, 2010. On December 15, 2010, she brought a Motion requesting, inter alia, temporary custody of Mihai, temporary child support and temporary spousal support. On that date, Gordon, J. made a temporary temporary without prejudice order on consent of both parties, granting the Applicant sole custody of Mihai, and requiring the Respondent to pay the Applicant child support in the amount of $575.00 per month, based on the Respondent’s estimated 2010 income of $62,000.00. In addition, the order provided that the Respondent would pay spousal support to the Applicant in the amount of $325.00 per month commencing December 15, 2010. Paragraph 7 of the order required the Respondent to continue to maintain the usual expenses associated with the matrimonial home, including mortgage, taxes, insurance and utilities, pending the sale of the home. The Respondent maintained all of the expenses and assumed responsibility for mortgage payments in relation to the home from the time of the parties’ separation until the home was sold in February 2011. The Applicant received all of the net proceeds from the sale of the home, in the amount of $13,992.70.
[10] When the December 15, 2010 order was made, the Applicant remained unemployed. Her plan was to enter the Nursing program at Conestoga College in 2011. She was accepted into this program and began attending Conestoga College in September 2011.
III. POSITIONS OF THE PARTIES
[11] The Applicant is requesting that the December 15, 2010 order be varied on a temporary basis to provide for spousal support in the amount of $850.00 per month. Counsel for the Applicant argued that this award of support is appropriate having regard for the respective condition, means needs and circumstances of the parties. The Applicant states that she began the Nursing Program at Conestoga College, but that she was not successful in the program and failed one of her courses. She alleges that her inability to succeed in the program was partly attributable to the sexual abuse which her son suffered at the hands of the Respondent. The Applicant’s evidence is that she began looking for work in June 2012, when it became apparent that she would not be permitted back into the Nursing program. In addition, she took steps through the Conestoga career Centre to ascertain what action would be required for her to become enrolled in the Practical Nursing Program at Conestoga College, and obtained a Certificate from the Food Safety Training Program through the Region of Waterloo Public Health Program in an effort to increase her employment potential. Despite these efforts, she states that she has been unable to find employment and that the spousal support award of $325.00 per month is insufficient to allow her to meet her basic needs.
[12] The Respondent acknowledges that from July 2011 until August 2012, he voluntarily increased the spousal support payments to the Applicant to $850.00 per month. He states that he did so on the understanding that the Applicant would be successfully undertaking her Nursing studies at Conestoga College as she had planned. He further acknowledges that he unilaterally reduced the spousal support payments to $325.00 per month, as provided for in the December 15, 2010 order, commencing September 2012, based on the Applicant’s lack of success in completing the Nursing program and his opinion that the Applicant had made insufficient efforts to obtain work and earn an income. The Respondent’s position is that the test on this Motion is whether there has been a material and substantial change in circumstances since the December 15, 2010 order was made. He argues that the Applicant has not met this test. In the alternative, he states that the Applicant should be imputed a minimum wage income for the purposes of the spousal support calculation, given that she obtained a Bachelor’s Degree in Science from Romania and that she is no longer required to provide full time care for Mihai given his age.
IV. THE LAW
A. The Applicable Statutory Framework
[13] The legislation which applies to the issue of temporary spousal support in this case is the Divorce Act.[^1] The parties did not provide me with any case-law regarding the applicable test for varying the order in question. Although counsel characterized the December 15, 2010 order as a “temporary” order, in fact the order was made on an “interim interim without prejudice basis.” This case raises the issue of the test that should be applied on a Motion to vary a temporary temporary without prejudice spousal support order.
[14] Sections 15.2(1) and (2) of the Divorce Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable, as follows:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
[15] Section 15.2(4) of the Divorce Act directs the court hearing a spousal support claim to take into consideration “the condition, means needs and other circumstances of each spouse,” including:
The length of time the spouses cohabited;
The functions performed by each spouse during cohabitation; and
Any order, agreement or arrangements relating to support of either spouse.
[16] Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order as follows:
Objectives of Spousal Support Order
15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[17] Section 15.2(5) establishes the principle that misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Divorce Act.
B. Variation of Spousal Support Orders Made Pending Trial
1. The Test for Variation of Temporary Orders
[18] The Divorce Act does not specifically address the issue of variation of temporary spousal support orders. Section 17 of the Divorce Act sets out a framework for the variation of support and custody orders, however that section only applies to variation of final spousal support orders made pursuant to section 15.2(1) of the Act.[^2]
[19] Despite the lack of specific provisions in the Divorce Act regarding variation of temporary orders, the court does have the authority to make changes to temporary spousal support orders in response to developments in the parties’ situations and the availability of more fulsome evidence relevant to the spousal support analysis. The power to vary temporary spousal support orders made under the Act derives from the court’s inherent jurisdiction to amend interlocutory orders.[^3] This ability to vary such orders is critical to ensuring fairness and justice as between the parties, given that temporary orders are often imperfect solutions based on very limited and usually untested information.[^4] As Sachs, J. stated in Chaitas v. Christopoulos,[^5] temporary corollary relief orders are intended to provide “a reasonably acceptable solution to a difficult problem until trial.”
[20] The test that applies on a Motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson[^6] that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a Motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation.[^7] The onus on a party who seeks to vary a temporary spousal support order rather than waiting until trial is a heavy one.[^8]
2. The Test for Variation of “Temporary Temporary Without Prejudice” Orders
i. General Principles
[21] As noted previously, although counsel described the December 15, 2010 order as a temporary order, the record indicates that it was actually a “temporary temporary without prejudice” order. The question that arises is whether the test to vary such an order is the same as the test that applies to vary a temporary order. I did not receive submissions from counsel on this issue, but the distinction is an important one.
[22] Neither the Divorce Act nor the Family Law Rules refer to temporary temporary without prejudice orders. However, as a matter of practice, such orders are often made at the early stage of Family Law proceedings to address very pressing issues and to provide some measure of order and stability to the parties’ immediate affairs. These orders are typically made at a time of high stress, and before the parties or their counsel have had a full opportunity to assess the parties’ respective financial situations or to formulate a clear plan for the parties to move forward with their separate lives. The evidentiary record upon which the court makes such orders is therefore typically incomplete. This was the situation that Gordon, J. faced in dealing with the Applicant’s initial Motion for spousal support and other relief. The December 15, 2010 order was made on a consent basis, at a time when there was uncertainty as to how the parties’ respective situations and plans for moving towards independence from each other would evolve.
[23] The intention of temporary temporary without prejudice orders is to create an interim solution for an even shorter period of time than from the date of the order until trial.[^9] Having regard for this intention and the other considerations discussed above, the “substantial change in circumstances” test is not appropriate and does not apply. Rather, in cases where a party seeks to vary a temporary temporary without prejudice spousal support order, I agree with the conclusion reached by Boswell, J. in Oxley v. Oxley[^10] that the court should reconsider the issue of spousal support as a hearing de novo on the more complete record before the court, without the necessity of the moving party having to establish a substantial change in circumstances.
[24] I turn to the test that applies on an initial Motion for temporary spousal support. The legislative criteria under the Divorce Act for granting temporary spousal support orders is identical to those relating to a final spousal support order. However, the following additional general principles apply in dealing with Motions for temporary spousal support:
The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.[^11]
In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay.[^12]
The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge. [^13]
The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial.[^14] Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial.[^15]
Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs.[^16] The objective of encouraging self sufficiency is of less importance.[^17]
ii. Entitlement and Quantum
[25] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the context of the Divorce Act in the cases of Moge v. Moge[^18] and Bracklow v. Bracklow.[^19] In Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in Moge and Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind three conceptual models upon which entitlement to spousal support may arise. First, a spousal support obligation may arise on a compensatory basis, in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage.[^20] Entitlement can also arise in appropriate circumstances on a contractual or consensual basis, as a result of express or implied agreements between spouses that purport to either create or negate a spousal support obligation.[^21] Finally, entitlement may exist on a non-compensatory basis, as a result of the needs of a spouse, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage.[^22]
[26] The issue of quantum of spousal support must be determined taking into consideration the factors and objectives set out in section 15.2 of the Divorce Act. However, the advent of the SSAG has provided considerable assistance in addressing these issues. In Fisher v. Fisher,[^23] the Ontario Court of Appeal held that although the SSAG are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”[^24] The court further held that “when considered in their entirety and subject to their limitations, the Guidelines also assist in informing an appellate standard of review.”[^25] While the Guidelines are not binding, they provide a valuable litmus test for assessing both the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
[27] The SSAG have been relied upon as an ideal tool to assist motions judges on temporary spousal support motions.[^26]
[28] The authors of the SSAG emphasize that the formulas are intended to generate appropriate outcomes in the majority of typical cases, and acknowledge that there are atypical cases in which the formulas and outcomes do not necessarily yield results that are consistent with the support factors and objectives set out in section 15.2 of the Divorce Act.[^27] For this reason, the authors carved out a number of categories of exceptions from the ranges for amounts and durations for spousal support.
[29] The most significant exception under the SSAG for the purpose of temporary spousal support motions is the exception for compelling financial circumstances in the interim period. The authors recognized that when spouses separate, the parties’ affairs often remain intertwined, with one of the other assuming a disproportionate amount of debts and/or expenses that cannot be reduced. Often, this predicament can be alleviated when property issues are resolved at a later stage in the litigation, relieving the financially burdened spouse of economic hardship. The SSAG recognize an exception for cases where the payor has compelling financial circumstances in the interim period which impact on their ability to pay.[^28]
iii. Imputation of Income:
[30] One of the significant factors in assessing the parties’ respective condition, means needs and circumstances is their income. In this case, the Respondent has argued that a minimum wage income should be imputed to the Applicant for the purposes of the temporary spousal support calculation.
[31] The principles that apply in determining whether to impute income are the same in both child support and spousal support cases.[^29] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:
Imputing income
- (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[32] The list of circumstances set out in section 19 provides a useful summary of when it may be appropriate to consider imputing income in spousal support cases. This list is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so.[^30] The onus is on the party requesting the court to impute income to establish the grounds for this request.[^31]
[33] The Respondent suggests in this case that the Applicant is intentionally unemployed, in that she has made insufficient efforts to secure employment to contribute to her own support. The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart support obligations. A party is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court is required to consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.[^32]
[34] The court may impute income to a party in the context of a Motion for temporary spousal or child support, but should exercise caution in doing so having regard for limitations on the court’s ability in the context of a Motion to obtain a complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households. However, the decision as to whether or not income should be imputed ultimately remains in the discretion of the Motions judge, and depends on the particular facts of each case. Income may be imputed to a recipient spouse in cases involving a clear refusal to work or clearly insufficient efforts on their part to contribute to their expenses during the interim period.
V. ANALYSIS
[35] I have considered all of the above noted principles in reviewing the evidence in this case, and I conclude that the Applicant has made out a prima facie case for the spousal support order which she is requesting at this time.
[36] Dealing first with the issue of entitlement, the evidence supports the conclusion that there is a triable issue on the question of entitlement. There is ample evidence before me to suggest that the Applicant is entitled to spousal support both on a compensatory and needs basis. The parties had a twenty four year relationship, and it appears from the evidence that the Respondent was the primary financial provider for the family, with the Applicant having very limited involvement in the work force. Further, it appears that the Applicant was the primary caregiver for Mihai. Since the separation, she has been Mihai’s sole caregiver.
[37] I am also satisfied based on the evidence before me that the Applicant has a clear need for financial assistance. I have taken into consideration the principle that need should be considered taking into account the parties’ standard of living during the course of their relationship. The Respondent’s income has been fairly consistent over the past several years, ranging from $58,740.00 to $62,913.00 from 2009 to 2011. This income would have allowed the parties to have a reasonable standard of living during the latter years of the marriage. Based on the Financial Statements which the Applicant has filed in these proceedings, I am satisfied that she has experienced considerable financial challenges since the separation. As of the time that she prepared her Financial Statement sworn May 10, 2011, she had a monthly deficit of $775.00 per month, after receipt of child and spousal support. I have reviewed the expenses which she included on that Financial Statement, and they all appeared to be modest and reasonable. Upon reviewing her Financial Statement sworn September 21, 2012, it appears that she remains in a deficit situation in the amount of $584.27 per month, after receipt of spousal and child support. Again, I do not have any concerns about the expenses which she has claimed on that Financial Statement.
[38] In addressing the issue of need, I must consider the Respondent’s claim that the Applicant should be imputed income at this time. While I agree that the Applicant must step up her efforts at this point to find an income source so as to contribute to her financial needs, I decline to impute income to her at this juncture. This was a long term relationship, and I am satisfied on the evidence before me that the Applicant has faced a number of challenges in her efforts to improve her financial situation. In particular, she has been Mihai’s sole caregiver since the separation, and there is evidence before me that Mihai has experienced serious challenges since that time. While the Respondent denies the allegations which have been made against him about abuse towards Mihai, he does not challenge the Applicant’s evidence that Mihai is experiencing serious emotional difficulties for which he has required counselling and has been prescribed medication. Mihai continues to attend counselling on a bi or tri-weekly basis due to his issues, and he is struggling both at school and on a personal level. His difficulties are such that police involvement was required in the spring of 2012 after he began expressing suicidal ideation. I accept the Applicant’s evidence that her parental responsibilities in relation to Mihai have impacted on her ability to work towards self-sufficiency.
[39] In determining the issue of whether income should be imputed to the Applicant, I have also taken into consideration the fact that the Applicant is Romanian, and that her post-secondary education was undertaken in Romania. English is her second language. In addition, there is no evidence before me to suggest that the Applicant has developed any significant job skills. A review of her historical tax records indicates that she has not had significant income since at least 2007. Given the length of the marriage, the nature of the role which she assumed during the marriage, her educational and work background and her responsibilities towards Mihai, she will require a reasonable amount of time to formulate and implement a plan to achieve greater financial independence.
[40] I am satisfied that the Applicant has made reasonable efforts to date to retrain and seek means of supporting herself. Her plan to complete the Nursing Program was solid at the time that she began the program, and it is apparent that the Respondent supported her in moving forward with that plan, since he voluntarily increased spousal support to facilitate the Applicant’s goal. Unfortunately, the Applicant did not succeed in this program. There is a dispute as to the reasons for this. The Applicant states that she had difficulty completing the program because of the fall-out from the abuse which the Respondent perpetrated on Mihai. Ultimately, the trial judge will need to determine the cause of the Applicant being unable to complete the program after hearing full evidence and cross examination on the issue. Regardless of the reason, however, I am satisfied that the Applicant has acted diligently in attempting to formulate alternative plans for retraining and for her own support since it became clear that she could not continue in the Nursing Program. She obtained certification in the area of food safety in August 2012, attended Conestoga Career Centre for assistance, formulated a number of action plans with the Career Centre staff, and took steps to explore the possibility of entering the Practical Nursing program at Conestoga. She wrote the HOAE standardized examination on October 4, 2012 in an attempt to qualify for the Practical program. She has applied for a number of jobs, as listed in paragraph 5 of her Affidavit sworn September 21, 2012 and paragraph 9 of her Affidavit sworn October 15, 2012. Unfortunately, her ability to assume a reasonable employment position is impaired at this time by the fact that she does not have a car. She has now applied for social assistance as a result of her inability to find employment to date.
[41] The Respondent has suggested that the Applicant has not made sufficient efforts to find employment. In support of this argument, he has attached job descriptions for various positions posted on Workopolis for the Kitchener area. I have reviewed these job descriptions, and most require relevant work experience or training, which the Applicant does not appear to have based on the evidence before me. Other positions included are retail or labourer positions which would involve a minimal wage, and many of which are part time. The Applicant will need to diligently pursue these and other types of employment opportunities on a go forward basis. However, I am required at this point to determine whether the efforts which she has made to date to retrain and find employment are sufficient to avoid an imputation of income to her, and I am satisfied that these efforts have been appropriate.
[42] I turn to the issue of quantum of spousal support pending trial. As noted previously in these Reasons, it appears from the evidence before me that the Respondent is on target for achieving a total 2012 income of approximately $64,000.00. I will use the figure of $62,000.00, however, as this was his approximate 2011 income and counsel for both parties were content to use this amount for the purposes of this Motion.
[43] I have reviewed the Respondent’s Financial Statement sworn October 11, 2012. He states therein that his monthly income is $4,903.00. It is unclear to me how he reached this figure, since an annual income of $62,000.00 would translate into a monthly income of $5,167.00. The Respondent has set out monthly expenses totalling $4,274.00. Of this amount, he includes $200.00 per month for vacation. I am not inclined to consider this amount, since the Applicant has not claimed any amount for vacation on her Financial Statement sworn September 21, 2012. Accordingly with monthly expenses totalling $4,074.00, the Respondent has a monthly surplus of $1,093.00, not including spousal and child support paid, as compared to the Applicant’s monthly deficit of $1,958.00, not including spousal and child support received.
[44] I have also taken into consideration the fact that the Applicant received the full proceeds from the sale of the matrimonial home, in the amount of $13,992.70. It appears that this was in all likelihood on account of an advance on an equalization payment. Regardless of the parties’ intentions in transferring this amount to her, however, I note that the Respondent has a significantly larger asset base from which he can draw if necessary to support himself pending trial. His bank accounts, savings, and investments alone total $30,104.00. Furthermore, while the Respondent has debts totalling $3,762.00, the Applicant has debts of $2,699.00 with no current independent source of income to pay them off.
[45] When the December 15, 2010 order was made, the Respondent had been covering all expenses relating to the jointly held matrimonial home. The order required him to continue doing so. These financial obligations placed an additional burden on him at that time. In addition, based on the Respondent’s materials, it appeared that he anticipated having to incur additional significant expenses in order to prepare the matrimonial home for sale. The home has now been sold, and these additional exceptional financial burdens have been alleviated for the Respondent. The Respondent is currently renting his home, and his residence expenses as reflected in his Financial Statement sworn October 11, 2012 are less than they were at the time he swore his previous Financial Statement on December 7, 2010.
[46] I have considered the ranges produced by applying the SSAG. Using the figure of $62,000.00 for the Respondent’s income, and no income for the Applicant, and applying the “With Child Formula,” the resulting monthly spousal support ranges are $1,166.00 (low), $1,311.00 (mid) and $1,460 (high). These numbers are significantly higher than the $850.00 which the Applicant is requesting. Even if I were to have imputed income to the Applicant, the most I would have imputed at this stage would have been $8,000.00 per year, having regard for the factors discussed above which are impacting on her ability to secure employment and move towards greater financial independence. Using that figure, the ranges produced, using the “With Child Formula,” are $725.00 (low), $887.00 (mid) and $1,057.00 (high). Given the length of the relationship, the roles adopted during marriage, the high needs of Mihai at this time, the Applicant’s sole care-giving role and her limited relevant education and job skills at this point, an award somewhere between the mid to high range would have been appropriate.
[47] Mihai will be turning eighteen years of age on January 16, 2013. It is unclear at this point whether he will be continuing in school in 2013. If he does not continue with his schooling, there may be an issue as to whether he is unable to withdraw from parental charge due to disability, which would need to be determined in order to assess the Applicant’s ongoing entitlement to child support. If her child support entitlement ends, the “Without Child Formula” would come into play, resulting in even higher ranges for spousal support under the SSAG.
[48] As noted previously, the Respondent voluntarily paid spousal support in the amount of $850.00 per month from July 2011 until August 2012. The parties consented to an order requiring him to pay spousal support in that amount during that period of time, which allowed the Respondent to derive a benefit from a tax deductibility perspective.
[49] With respect to costs of this Motion, I am hopeful that the parties will be able to resolve this issue without the necessity of incurring the additional expense of preparing written submissions, Bills of Costs and Books of Authorities.
VI. ORDER TO ISSUE
[50] Based on the foregoing, an order shall issue as follows:
Paragraph 4 of the Order of the Honourable Mr. Justice Gordon dated December 15, 2010 is changed to provide that commencing July 1, 2011 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant spousal support in the amount of $850.00 per month.
There are no arrears of spousal support owing by the Respondent to the Applicant for the period commencing July 1, 2011 and ending August 31, 2012.
Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post judgment interest at the rate of 3% per annum, effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.
A Support Deduction Order shall issue.
If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by December 14, 2012. Any reply submissions shall be served and filed by December 21, 2012.
The Honourable Madam Justice D. Chappel
Released: November 27, 2012
COURT FILE NO.: 44792-10
ONTARIO
SUPERIOR COURT OF JUSTICE
Elena-Rodica Damaschin-Zamfirescu
Applicant
– and –
Daniel-Julian Damaschin-Zamfirescu
Respondent
REASONS FOR JUDGMENT
The Honourable Madam Justice Chappel
Released: November 27, 2012
[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. [^2]: Monkhouse v. Monkouse and Charlton, 1987 CarswellSask 65 (Q.B.); Whelan v. Whelan, 2005 CarswellNfld 106 (N.L.C.A.); Stannard v. Stannard, 1991 CarswellAlta 334 (Q.B.). [^3]: Stannard v. Stannard, Ibid., para. 9. [^4]: Oxley v. Oxley, 2010 CarswellOnt 1987 (S.C.J.). [^5]: Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.). [^6]: Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403 (C.A.); see also Stannard v. Stannard, Ibid; Biddle v. Biddle, 2010 CarswellOnt 6279 (S.C.J.); France v. France, 1996 CarswellOnt 1187 (Gen. Div.). [^7]: Cutaia-Mahler v. Mahler, 2001 CanLII 28138 (ON SC), 2001 CarswellOnt 3054 (S.C.J.). [^8]: Coley v. Coley (1981), 1981 CanLII 3459 (MB CA), 20 R.F.L. (2d) 327 (Man. C.A.); Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.). [^9]: Oxley v. Oxley,Supra., at para. 27. [^10]: Oxley v. Oxley, Supra. [^11]: Kowalski v. Grant, 2007 MBQB 235, 2007 CarswellMan 422 (Man. Q.B.); Charbonneau v. Charbonneau, 2004 CarswellOnt 5211 (Ont. S.C.J.); Robles v. Kuhn, 2009 BCSC 1163, 2009 CarswellBC 2239 (B.C. Master); Brown v. Brown, 2004 CarswellBC 231 (S.C.) [^12]: Belcourt v. Chartrand, 2006 CarswellOnt 2272 (Ont. S.C.J.); Gerlitz v. Gerlitz, 2005 CarswellAlta 1841 (Alta. C.A.), reversing in part 2005 CarswellAlta 1240 (Alta. Q.B.); Prikker v. Vaine, 2010 CarswellOnt 7125 (S.C.J), additional reasons at 2010 CarswellOnt 7126 (S.C.J.). [^13]: Kowalski v. Grant, Ibid.; Noonan v. Noonan, 2006 CarswellPEI 48 (T.D.), reversed 2007 CarswellPEI 17 (C.A.); Bater v. Bater, 2006 CarswellOnt 4107 (S.C.J.); Gonzalez v. Ross, 2007 CarswellOnt 753 (S.C.J.). [^14]: Kowalski v. Grant, 2007, Supra. [^15]: Kowalski v. Grant, Ibid. [^16]: Lila v. Lila, 1986 CarswellOnt 294 (Ont. C.A.); Kowalski v. Grant, Ibid.; Robles v. Kuhn, Supra. [^17]: Robles v. Kuhn, Ibid.; Ridgeway-Firman v. Firman, 1999 CarswellOnt. 1201 (Ont. Gen. Div.). [^18]: Moge v. Moge, (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.). [^19]: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.). [^20]: Moge v. Moge, Supra., paras. 68-70. [^21]: Bracklow v. Bracklow, Supra., para. 38. [^22]: Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, July 2008), at p. 9. [^23]: Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.). [^24]: ,Ibid., para. 96. [^25]: Ibid., para. 102. [^26]: M. (D.R.) v. M. (R.B.), 2006 BCSC 1921, 2006 CarswellBC 3177 (B.C.S.C.); Decker v. Fedorsen, 2011 CarswellOnt 9891 (Ont. C.J.); Zdrill v. Zdrill, 2011 CarswellOnt 2886 (Ont. S.C.J.). [^27]: Spousal Support Advisory Guidelines, Supra., p. 116. [^28]: Spousal Support Advisory Guidelines, Supra., pp. 116-117. [^29]: Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 (Ont. S.C.J.); Perino v. Perino, 2007 CanLII 46919 (ON SC), 2007 CarswellOnt 7171 (Ont. S.C.J.); Decker v. Fedorsen, Supra. [^30]: Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (Ont. C.A.); Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (Ont. C.A.). [^31]: Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (Ont. C.A.), additional reasons 2009 Carswell Ont 3112 (Ont. C.A.); Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt17 (Ont. C.A.). [^32]: Drygala v. Pauli, Ibid; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 ( Ont. C.A.).